Ward v Associated Newspapers Ltd

At the pleading stage, a claimant may advance malice by alleging both knowledge of falsity and a dominant improper motive. The court should not artificially separate those bases where the evidence of state of mind may overlap. Whether the defendant was malicious is ordinarily a matter for trial.

A pleading should identify the persons alleged to have participated in the relevant publication. Allegations against others may be irrelevant as independent allegations, although evidence of their knowledge or communications may be relevant to the publishers’ state of mind. A party may rely on the opponent’s objectively stated position in earlier proceedings, but cannot widen the case into an investigation of why that position was adopted.

The claimant, acting in person, brought claims arising from the defendant’s publication of a statement in a Byline article. The defendant made a further substantial interim application challenging proposed amendments to the Particulars of Claim before a Defence had been served.

The application concerned the pleading of malice, the relevance and proportionality of allegations concerning the defendant’s position at the Leveson Inquiry, alleged knowledge of falsity, damages, possible future proceedings and the identity of the proper defendant. The court also considered whether certain existing pleading could be challenged without a formal application.

1. Malice. The claimant was permitted to plead malice on both knowledge of falsity or recklessness and dominant improper motive. Malice is assessed by reference to the defendant’s state of mind at publication. Although the two concepts can be distinguished jurisprudentially, the evidence may be inseparable or substantially overlapping, particularly when recklessness is alleged. The viability of the dominant-improper-motive case could not be determined without resolving the relevant facts at trial. The amendments therefore disclosed a viable case and were permitted, subject to the stated limits (paras [7]-[15]).
2. Allegations of malice against persons who were not alleged to have participated in publication were irrelevant as pleaded allegations. Evidence concerning a third party could nevertheless be relevant to the state of mind of the alleged publishers (paras [16]-[17]).
3. The claimant could rely on the defendant’s objective position at the Leveson Inquiry as potentially relevant to the publishers’ state of mind. The pleading could not investigate why the defendant adopted that position. The relevant inquiry was limited to the position publicly advanced and whether it was relevant to the alleged motive for the later publication (paras [26]-[29]).
4. The court struck out an allegation that a former editor had lied to the Leveson Inquiry, because it was neither relevant nor probative of malice against the alleged publishers. The claimant could instead plead that the publishers sought to maintain the defendant’s position at the Inquiry (paras [64]-[68]).
5. Permission was refused for material alleging that the defendant had failed to object to earlier publications, as that material was not relevant or probative of malice in relation to the publication sued upon. A proposed claim for anticipated income from speaking engagements or a book project could be pleaded only as support for general damages, including under Defamation Act 1952, s 3 (paras [61]-[70]).
6. The paragraphs reserving possible future proceedings were ordered to be removed. Any later claim would depend on the applicable legal rules, including Henderson v Henderson (1843) 3 Hare 100. The correct defendant was Associated Newspapers Limited, since the Mail on Sunday was a newspaper title rather than a legal entity (paras [71]-[72]).

Earlier in the same proceedings, the court dismissed the defendant’s application to strike out the claim and for summary judgment: [2020] EWHC 2797 (QB). This judgment determined a further interim application concerning amendments to the Particulars of Claim.